Most people share the common misunderstanding that under our constitution a person cannot twice be put in jeopardy for the same offense. This legal concept is known as “double jeopardy.” The Double Jeopardy Clause is located in the Fifth Amendment of the United States Constitution.

The Constitution had been in place less than sixty years before the U.S. Supreme Court in a trilogy of cases—Fox v. Ohio, United States v. Marigold, and Moore v. Illinois—created an exception to its double jeopardy rule. That exception, first created in 1847, became known as the “dual-sovereignty doctrine.” Essentially this doctrine permits two sovereigns—for example, the federal government and a state—to prosecute a person for the same conduct when each sovereign has a law against that conduct.

Same Offense vs. Same Conduct

In a 1990 dissenting opinion in Grady v. Corbin, the late Supreme Court Justice Antonin Scalia articulated the constitutional logic behind the doctrine: “[T]he language of the [Double Jeopardy] Clause … protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions.”

The Supreme Court this term, in Gamble v. United States, was called upon to decide whether the doctrine of stare decisis would stave off a constitutional challenge to the dual sovereignty doctrine. “Gamble pleaded guilty to a charge of violating Alabama’s felon-in-possession-of-a-firearm statute. Federal prosecutors then indicted him for the same instance of possession under federal law. Gamble moved to dismiss, arguing that the federal indictment was for “the same offence” as the one at issue in his state conviction, thus exposing him to double jeopardy under the Fifth Amendment.”

The Supreme Court declined to overturn the dual sovereignty doctrine and ultimately affirmed the lower courts, but not without exposing attitudes about stare decisis and the value of legal precedent that caused concern among some legal scholars.

Stare Decisis

Stare decisis (a Latin term meaning “to stand by that which is decided”) is a legal doctrine that requires courts to follow historical precedents when the case at hand is similar to prior precedents.

The doctrine is not without significant legal controversy as evidenced by a May 13, 2019 decision by the Supreme Court in Franchise Tax Board of California v. Hyatt in which the court overturned a 40-year precedent, causing legal scholars concern over what long standing cases and precedent might be next. Thomas wrote that the court’s earlier ruling was “irreconcilable with our constitutional structure,” and that stare decisis—the legal doctrine that courts should generally stand by earlier rulings even if they disagree with them— is “not an inexorable command.”

“Conservatives” Have Precedent in Their Cross-Hairs

Two months earlier, in a March 4, 2019 article, The New York Times pointed to recent criticisms Associate Justice Clarence Thomas has leveled against three prominent Supreme Court precedents: Roe v. Wade (established a woman’s legal right to an abortion), New York Times v. Sullivan (provided broad protections for the press in libel actions brought by a public official, and Gideon v. Wainwright (right of an indigent defendant to have appointed counsel).

Justice Thomas said Roe was “notoriously incorrect,” that Sullivan was one of many “policy-driven decisions masquerading as constitutional law,” and that the Sixth Amendment relied upon by the Court in Gideon provides only a right to hire an attorney, not to have one appointed by the court as the Constitution originally intended.

The Times article pointed to a 2013 Federalist Society at which Justice Thomas, in response to a question put to him about stare decisis, said that while the concept has some force with him, it was “not enough to keep me from going to the Constitution.”

Original Intent of Framers Reigns Supreme

In other words, the original intent of the Constitution reigns supreme with the Thomas.

Emeritus Professor of Political Science at the University of Albany, Stephen L. Wasby, has unearthed more than 250 opinions, concurring and dissenting, written by Thomas in which he either called for the reconsideration or an overruling of legal precedents by the Court.

University of South Texas College of Law Houston, Josh Blackman, told the Times:

“Justice Thomas, more than any other justice, is willing to revisit and reverse old precedents that are inconsistent with the Constitution’s original meaning. However, he will not reverse an old precedent unless the parties raise the argument in what he deems as ‘appropriate case.’ Therefore, he will often ask the parties to raise the argument in a future case.”

That said, it came as somewhat of surprise that Justice Thomas, in a concurring opinion in a 7-2 decision in Gamble v. United States, voted to uphold the “dual sovereignty doctrine”—a doctrine he had expressed prior skepticism about—while simultaneously blasting the doctrine of stare decisis.

Demonstrably Erroneous Precedent

“I agree that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine,” Thomas wrote in Gamble. “The founding generation foresaw very limited potential for overlapping criminal prosecutions by the States and the Federal Government. The Founders therefore had no reason to address the double jeopardy question that the Court resolves today. Given their understanding of Congress’ limited criminal jurisdiction and the absence of an analogous dual-sovereign system in England, it is difficult to conclude that the People who ratified the Fifth Amendment understood it to prohibit prosecution by a State and the Federal Government for the same offense. And, of course, we are not entitled to interpret the Constitution to align it with our personal sensibilities about ‘unjust’ prosecutions.

“I write separately to address the proper role of the doctrine of stare decisis. In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always ‘tempting for judges to confuse our own preferences with the requirements of the law,’ and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises ‘force’ and ‘will,’ two attributes the People did not give it.

“We should restore our stare decisis jurisprudence to ensure that we exercise ‘mer[e] judgment,’ which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.”

Justice Thomas concluded his broadside attack on stare decisis with this summation:

“The true irony of our modern stare decisis doctrine lies in the fact that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible … It is no secret that stare decisis has had a ‘ratchet-like effect,’ cementing certain grievous departures from the law into the Court’s jurisprudence. Perhaps the most egregious example of this illegitimate use of stare decisis can be found in our ‘substantive due process’ jurisprudence. The Court does not seriously defend the ‘legal fiction’ of substantive due process as consistent with the original understanding of the Due Process Clause. And as I have explained before, ‘this fiction is a particularly dangerous one’ because it ‘lack[s] a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not.’ Unfortunately, the Court has doggedly adhered to these erroneous substantive-due-process precedents again and again, often to disastrous ends…”

Under Justice Thomas’s extremely narrow view of the rights guaranteed by the Constitution as it was written and ratified in the late 1700s, the government would enjoy absolute power and the individual would have no meaningful rights or recourse to challenge abuses of government power. Human slavery would be legal, Jim Crow laws would still exist in the South, and Justice Thomas would not enjoy a right under the original intent of the constitution to be a member of the U.S. Supreme Court.

The law, and the doctrine of stare decisis that gives it meaningful and binding force, saves us from the darkest regions of the human soul. The law serves and protects the law-abiding citizens of this country from those who would rule with absolute, unbridled authoritarian power. It is pure, unadulterated fallacy to think, as Justice Thomas so vehemently does, that the constitution (embracing all the social values and mores of the 1700s) should exist as a stand-alone document in the world of the 21st century.

We do not agree with the ruling in Gamble. We share the dissents by Justices Gorsuch and Ginsburg. But the legal views expressed by Justice Thomas in his concurring opinion in that decision are so off-the-wall as to give us pause to contemplate the potential social dangers those views pose.